Hicke v Drefko, 2017 ABQB 795

Court of Queen’s Bench of Alberta Citation: Hicke v Drefko, 2017 ABQB 795 Date: 20171222 Docket: 0101 04090 Registry: Calgary Between: Dr. Paul D. Hicke, Dr. Paul D. Hicke Professional Corporation Applicant - and - Lonnie William Drefko Respondent _______________________________________________________ Memorandum of Decision of J.B. Hanebury , Master in Chambers _______________________________________________________ [ 1 ] Dr. Hicke and his Corporation seek leave to amend their Statement of Defence to include a defence under the Limitations Act, RSA 2000 c. L-12 and the Limitation of Actions Act, RSA 1980 c.

L-15 . The plaintiff opposes this application, arguing that: it is too late to do so; the amendment is hopeless; and, he would suffer prejudice if it were allowed. The facts are essentially undisputed. [ 2 ] Mr. Drefko alleges that Dr. Hicke, a chiropractor, injured him when negligently performing one or more chiropractic treatments. The treatments commenced on April 2, 1997, and ended in January 1998. The statement of claim was filed on February 22, 2001.

[ 3 ] Mr. Drefko stated that when he was treated by Dr. Hicke he felt “an immediate pop and a burning pain that went right across [his] back and through [his] ribs. The pain has not gone away." He went to a series of medical appointments in 1998 and 1999 and thereafter. His symptoms continued, essentially unabated. [ 4 ] He was eventually referred for an MRI, which was performed on January 2, 2000. Mr. Drefko says that it was only on March 3, 2000, when he received the results of that MRI, and discovered that he had a herniated disc, that his claim was discoverable.

He subsequently had surgery to repair the issue. DISCUSSION [ 5 ] Before turning to the real issue between the parties, I will deal with the argument of the Respondent, Mr. Drefko, in relation to rule 6.6(2). This Rule states: 6.6(1) If the respondent to an application intends to rely on an affidavit or other evidence when the application is heard or considered, the respondent must reply by serving on the applicant a copy of the affidavit or other evidence a reasonable time before the application is to be heard or considered.

(2) The applicant may respond by affidavit or other evidence to the respondent’s affidavit or other evidence but must, (

a) serve the affidavit or other evidence on the respondent a reasonable time before the application is to be heard, and (

b) limit the response to replying to the respondent’s affidavit or other evidence.

(3) If either the respondent or applicant does not give the other reasonable notice, the Court may impose costs on the party who did not give reasonable notice, and the party who did not give reasonable notice is not entitled to rely on that party’s affidavit or other evidence unless the Court otherwise permits. [ 6 ] The application was filed in April, 2017, and it was supported by the affidavit of a legal assistant. The responding affidavit of Mr. Drefko was filed August 15, 2017. Dr. Hicke then filed an affidavit on August 30 th , 2017.

Briefs were filed September 28, and October 6, 2017 respectively. [ 7 ] The argument of Mr. Drefko is that the affidavit does not limit the response to dealing with the evidence in Mr. Drefko’s affidavit but it goes further afield. In short, that it is an attempt to bolster the initial evidence by repeating some of the evidence filed in support of the application, albeit not in a significant way, and it should therefore be struck. Mr. Drefko confirmed that he wouldn’t “make great hay” about it, but that it was simply wrong. [ 8 ] Dr. Hicke responded that the second affidavit was filed in order to allow Mr.

Drefko to cross-examine Dr. Hicke, which he declined to do. Furthermore, any new records referenced in that affidavit were records already in Mr. Drefko’s possession. [ 9 ] I have reviewed both affidavits filed in support of Dr. Hicke’s application, and agree that on a strict application of the rule, the second affidavit does not comply with rule 6.2(2)(b). Dr. Hicke would have been wise to file his own affidavit at the initiation of the application, not in response. I note that 6.6(3) provides that it is the lack of notice that leads to the Court refusing to consider the affidavit.

I do not see that timing was a real issue between the parties, nor that either party was caught by surprise with new information.

Therefore, I will consider all of the material filed in order to ensure that this matter is fairly determined on the merits. [ 10 ] I turn next to the primary issue between the parties. [ 11 ] Rule 3.65 (1) provides that before or after the close of pleadings, the Court may give permission to amend a pleading. [ 12 ] In John Barlot Architect Ltd. v. 973189 Alberta Ltd., 2008 ABQB 458 , para. 17 the court said that "amendments are to be presumptively allowed, no matter how late…" [ 13 ] The Alberta Court of Appeal in Attila Dogan Construction and Installation Co.

Inc. v AMEC Americas Limited , 2014 ABCA 74 , para. 24 , said that “even after pleadings close, amendments are still relatively easy to get…there is no deadline for amendment, and pleadings can even be amended at trial." At paragraph 26 the court noted that: The amount of evidence required to justify an amendment is low. It is not necessary for the amending party to show that the amended pleading can be proven at trial, nor that it meets the test for

summary judgment. [ 14 ] This is in line with the same Court’s decision in Balm v. 3512061 Canada Ltd., 2003 ABCA 98 where it said at para. 29 that: A modest degree of evidence justifies an amendment to pleadings within the limitation period… Requiring a stiffer test to amend would be pointless, producing little or no practical result. To require a stiffer standard for evidence to amend would produce a motion for

summary judgment… [ 15 ] At paragraph 43 of that case the Court said that the purpose of this low threshold for amending a pleading is to ensure that justice is done between the parties and added that “an amendment should be allowed, no matter how careless or late, unless there is prejudice to the other side." That Court went on to note that when there is no prejudice, only a "clearly and obviously invalid" amendment should be rejected.

It said at para. 12 that "even a doubtful plea should be allowed, so long as it is at least arguable". [ 16 ] In Attila Dogan , (supra) at para. 25, the Alberta Court of Appeal set out four exceptions to this general rule for the granting of amendments: where the amendment is "hopeless"; where the amendment would cause serious prejudice to the opposing party, not compensable in costs; where the amendment would add a new party or new cause of action after the expiry of a limitation period; and where there is an element of bad faith associated with the failure to plead the amendment in the first instance"

[17] There is no argument of bad faith. Similarly, this is not an application to add a new party or a new cause of action. The issuesto be considered in this case are whether the amendment is hopeless and whether there would be serious prejudice to the opposing party,not compensable in costs. Is the amendment hopeless? [18] In John Barlot Architect, (supra) at para 29, the Court said that the test for "hopeless" amendments is similar to the test forstriking pleadings.

In other words, a hopeless amendment is one where "it would have been struck out had it been in the pleadingsoriginally.” [19] The case law cited has established that the test I am to use in determining whether an amendment is hopeless is not that usedfor

summary judgment under rule 7.3, but rather the much lower bar found in the test used to strike pleadings. [20] With that test in mind I turn to the arguments of the parties. The fundamental issue between the parties starts with theapplicability of the transition provisions of the Limitations Act, RSA 2000, c. L-12. [21]

Section 2 provides that if the claimant knew or ought to have known of a claim before March 1, 1999, then he or she musthave sought a remedial order before the earlier of the time allowed under the former legislation or two years after the Limitations Act,SA 1996 c. L-15.1 came into force, i.e. March 1, 2001. Therefore, if Mr. Drefko knew or ought to have known of his claim before March1, 1999, the transition provision would require the limitation period found in the prior legislation applies. In this case it would be the oneyear limitation for chiropractors found in that prior Act, and the claim is out of time.

Dr. Hicke says that there is an arguable case thatthis one year limitation applies and seeks to amend his defence to make this argument at trial. [22] Mr. Drefko says that this limitation is not applicable. He acknowledges that he was injured prior to March 1, 1999, but says hedid not know nor ought to have known of his claim until the MRI results were shared with him in March, 2000. If that view is correct,then the claim is in time as he had until March 3, 2002 to file his claim, and he filed it in February, 2001. He relies on the case of Stuffcov.

Stuffco, 2006 ABCA 317 to support his view of the inapplicability of the transition provision and to argue that as a result the limitationdefence is hopeless. [23] I turn to the case law provided by the parties to ascertain whether the test to allow the amendment has been met: is there anarguable case that the transitional provision applies and the statement of claim is out of time. [24] In Stuffco, (supra), the Court considered the transition provisions and clearly reiterated that if the plaintiff did not know orought not to have known of her claim prior to March 1, 1999, then the new limitation provisions found in the new Act apply. [25] It commented at para. 30: The legislature's purpose in enacting the new Act was to rectify the unfairness inherent in the old Act where a limitation period couldexpire before a potential plaintiff discovered she had been harmed. [26] The court quoted from Sun Gro Horticulture Canada Ltd. v.

Alberta Metal Building Sales Inc., 2006 ABCA 243, where thecourt said that the fundamental operative principle of the new Act is knowledge, knowledge that the injury has occurred, that it was tosome degree attributable to the conduct of the defendant, and that it was sufficiently serious to warrant commencing a proceeding. [27] The Court said at para. 32 that where the claimant did not know of his or her claim "either actually or constructively" prior toMarch 1, 1999, his or her request is then subject to the new limitation periods set out in s. 3(1) of the Act. [28] The meaning of the words found in the transition provision, "knew, or in the circumstances ought to have known", wasconsidered by the Alberta Court of Appeal in Nasrin Karim Professional Corporation v.

Bank of Nova Scotia, 2007 ABCA 10, at para.54. The court said that the meaning of the term is informed by the common law discoverability principle that "a cause of action arises forpurposes of limitation when the material facts on which it is based have been discovered or ought to have been discovered by the plaintiffby the exercise of reasonable diligence." The court added that when making that determination the Court must also be mindful of section3 (1) (

a) of the present Limitations Act where three factors are set out for consideration. The claimant must have known or beenreasonably able to discover that the injury or loss occurred; that it was attributable to the conduct of the defendant; and that it warrantedbringing a proceeding. See as well Central Trust Co. v. Rafuse, (SCC), [1986] 2 SCR 147; Kamloops v. Nielsen, (SCC), [1984] 2 SCR 2; J.N. v. G.J.K., 2004 ABCA 394; [29] The Court in Karim noted that the principle of discovery does not require perfect knowledge.

Mere suspicion can be sufficientto trigger the running of a limitation, where there is some support for the suspicion. Nor is a medical opinion necessarily required tostart the clock ticking: See as well Kydd v. Abolarin 2011 ABQB 690, para. 35-39; Sztuckzka v. Knebel, 2012 ABQB 72, para. 11;Carreno v. Park, 2010 ABQB 36, para. 28. [30] In Sun Gro, (supra), a case that did not deal with the transition provisions, the Court held that while in it is true that a factualnexus gives rise to only one cause of action, section 3 (1) (

a) of the present Act links "immunity with the discoverability of the injury, notthe discoverability of a cause of action for any injury." See as well: Mills v. Royal Bank of Canada, 2012 ABCA 75, para. 34. [31] In Sousa v. Mayo , 2005 ABQB 845, the court took the same approach, saying that the discovery period will not commence atthe time of the event but at the time of discovery of the injury and it may commence at different times for different injuries. [32] In Gayton v.

Lacasse, 2010 ABCA 123, the court commented that: If a permanent brain injury is qualitatively different from a concussion, that it does not matter when a cause of action arose with respectto the concussion. What is important is when the appellant first knew, or ought to have known, that she had a permanent brain injury.

[ 33 ] In that case the Court found that this issue could not be dealt with in a

summary way on the record before the Chambers Judge. The test as to what matters should be considered when determining when a claimant knew, or in the circumstances, ought to have known that a proceeding was warranted was an important one with little precedent. The court would have to consider such things as the claimant's ongoing relationship with the defendant, the possible costs and strains of litigation given her injuries, and most fundamentally, her understanding of the true scope and significance of her injuries, which included the permanent brain injury.

The matter required a "full factual context" [ 34 ] With this case law in mind, I turn back to the application before me. [ 35 ] Dr. Hicke’s application is to amend a statement of defence. It is clear that the test to be applied involves a much lower threshold than that found in a

summary judgment application such as was being considered in Guy v. Lacasse . [ 36 ] While I recognize the argument of Mr. Drefko that he did not know precisely what the issue was with his back until he received the MRI results, I cannot agree with his view that there is no arguable case that the claim is barred by the Limitations Act . There is some evidence that Mr. Drefko knew he had been seriously injured in light of the way he described his resulting ongoing pain at that time. It appears he had an undiagnosed herniated disc from 1997. Should the clock have started then?

Or were the criteria met and the clock started only from the date of the MRI and actual diagnosis? [ 37 ] In my view, as in Guy and Lacasse , a far more careful consideration of all of the evidence is required to make this determination, one that will most likely need to be made only after hearing Mr. Drefko on the witness stand. This is not a determination that can or should be made at this stage. I cannot say that there is no arguable case that the transition provisions do not apply. [ 38 ] Therefore, I do not find the amendment to be hopeless. It raises an arguable issue.

Finally, I note that the statute does not exclude the amendment as it did in Bouvry Exports Calgary Ltd., v. ING Insurance Company of Canada , 2008 ABQB 61 . Does the amendment cause serious prejudice? [ 39 ] Mr. Drefko points out that the amendment is being sought some 16 years after the filing of the original statement of defence. The materials have been available to the defendants for over a decade.

He argues that he is prejudiced because questioning has closed and his counsel failed to ask any questions relating to the now-proposed limitations defence; and, it would be difficult at this time to get statements from his doctors and other treatment providers for the period 1997 to 2000, in order to respond to the limitations defence. He takes the view that at some point the court has to say “enough is enough with respect to the time that his passed”. [ 40 ] Dr. Hicke responds that the timing of Mr.

Drefko’s knowledge about the nature and extent of the injury he allegedly sustained is contained in paragraph five of the Statement of Claim and has already been the subject of questioning. Furthermore, he argues that the ticking of the clock is tied to the state of Mr. Drefko’s knowledge. Questioning Dr. Hicke is not relevant. As to the records of treatment providers, no new records have been identified as necessary.

They should have all been produced by now. [ 41 ] The case law has held that assertions of prejudice in response to amendment applications to add new limitations defences will not be allowed where they “put [the party opposite] into such a position that they must be injured”: Weatherford Canada Partnership v. Addie 2016 ABQB 188 , para. 62 . That case noted that the amendment is to be allowed when it would “put the parties in the same position for the purposes of justice that they were in at the time the slip was made”. See as well: E.(J.) v.

Alberta (Workers’ Compensation Board) 2015 ABQB 460 ; Quadrangle Holdings Ltd. v. Coady, 2012 ABQB 22 . [ 42 ] I agree with Mr. Drefko that there is no doubt this defence should have been raised earlier. However, the case law is clear that the correction of slips and oversights can be allowed so that justice is ultimately done. In this case I cannot see prejudice that would operate to refuse the amendment. The treatment providers have provided their reports and evidence as to the nature of Mr. Drefko’s complaints and his ultimate diagnosis. What the court will want to hear is Mr.

Drefko’s description of his problems during the relevant time period before the MRI in order to determine if the final diagnosis was necessary to start the limitation clock running. If any evidence must be marshaled, as suggested by Mr. Drefko, it is likely his own evidence. Furthermore, if any further questioning is required, which to me appears doubtful, it can be compensated in costs. CONCLUSION [ 43 ] The application is allowed. The amended statement of defence is to be filed forth with. If the parties wish, I am prepared to put in place a litigation plan to get this matter to trial expeditiously.

Should there be thrown away costs, they are the responsibility of Dr. Hicke. [ 44 ] If the parties wish to speak to costs an appointment can be made through the clerk’s office. Heard on the 03 rd day of November, 2017. Dated at the City of Calgary, Alberta this 20 th day of December, 2017.

J.B. Hanebury M.C.Q.B.A. Appearances: Edward Tawkin Tawkin Law Offices LLP for the Plaintiff Lara Mason Norton Rose Fulbright for the Defendant Aaron Stephenson Norton Rise Fulbright for the Defendant